When an employee makes an informal or formal complaint, an employer should take immediate steps to stop the alleged conflict, protect the involved parties and begin investigations. Responsiveness to a complaint and an investigation will not only yield the best information and evidence, but it will also enhance both the investigator’s and the employer’s credibility. Employers are legally obligated to investigate complaints (harassment, discrimination, retaliation, safety and ethical) in a timely manner.

Given that every complaint has the potential to become a lawsuit, employers should investigate every case in a way it can be presented to a court of law, if necessary.

Before embarking on an internal investigation, we recommend that an employer consider the following five top tips.

Tip 1 Plan the
investigation carefully!

An investigation must be planned to be effective and properly executed. A complete plan should address the following:

(a) Include an outline of the issue. There is often a
temptation to launch into an investigation without sufficient details of the
complaint(s). There is little point in putting forward an allegation(s)
without:

details of exactly what the allegation means,
e.g. ‘treated unfairly’ is too broad; specific details of how and why should be
provided

examples of incidents, times and preferably
dates

context.

(b) Develop a witness list and a plan for the
interviews including:

the order of witness interviews at the outset to
avoid collusion

a list of interview questions targeted to elicit
crucial information and details.

(c) Appoint an appropriate investigator. The
appropriate investigator should have:

an ability to investigate objectively without
bias

no stake in the outcome and no personal
relationship with the involved parties – the outcome should not directly affect
the investigator’s position within the organisation

skills that include prior investigative
knowledge and working knowledge of employment laws

strong interpersonal skills to build a rapport
with the parties involved and to be perceived as neutral and fair

(e) Set up a process for document retention throughout the investigation process.

Tip 2 Don’t let the investigation become a popularity contest!

Only interview witnesses who directly saw or heard something relevant to the investigation, not witnesses who are acting on hearsay.

Tip 3 Ensure you
have signed acknowledgements of confidentiality from each person involved.

Have everyone who participates in the process, including
support people, sign acknowledgements of confidentiality.

Make sure you are clear about the role of the support person
up front.

It should also be explained that to conduct an effective investigation, some information will be revealed to the accused and potential witnesses, but that information will be shared only on a ‘need to know’ basis. An employer should never promise absolute confidentiality to any party involved in the investigation.

Tip 4 Analyse the witness interviews and write a detailed report outlining your findings as an investigator for each allegation.

Don’t simply summarise the interviews and then fence sit. Be clear whether each allegation is substantiated or not, and provide clear support of your findings.

The final report should summarise:

the incident or issues investigated, including
dates

parties involved

key factual and credibility findings, including
sources referenced

employer policies or guidelines and their
applicability to the investigation

specific conclusions

party (or parties) responsible for making the
final determination

issues that could not be resolved and reasons
for lack of resolution

employer actions taken.

The goal of the document is to ensure that if a court, jury or government agency were to review it, the reviewers would conclude that the employer took the situation seriously, responded immediately and appropriately, and had a documented good faith basis for any actions taken during or because of the investigation.

Tip 5 Be prepared for the post investigation fall-out!

You will likely need mediation or some method of dispute
resolution to restore working relationships. These can be conducted either
internally or outsourced.

This publication is
for information only and is not legal advice. You should obtain advice that is
specific to your circumstances and not rely on this publication as legal
advice.

This article first appeared on the CGW website and has been reproduced with permission.

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